Qass. 
Book. 







KANSAS CONTESTED ELECTION. 



SPEECH 



OP 



HON. JOHN HICKMAN, OF PA., 






DELIVERED 



IN THE HOUSE OF REPRESENTATIVES, MARCH 19, 1856. 



Cl(winf; the debate on the Resolution reported by him from 
the Committee of Eiections, authorizing the said com- 
mittee to send for persons and papers in tlie Coutested- 

; Election case from the Territory of Kansas, 

Mr. HICKMAN said: 

Mr. Speaker: The infirm state- of my health 
this morning leaves me little ground to hope that 
I shall be able to address to this House the re- 
marks I had intended to make; and nothing in- 
duces me to occupy the floor at this time but the 
connection of my name with the action of the 
niEuority of the committee and their report. 

I wish, sir, to preface what I have to say with 
this single remark, that if sectional feeling, 
usurping the scat of judgment, has entered into 
the consideration of this question, either upon the 
one side or the other, I regret it. It has no legit- 
imate place here. As far as concerns myself, I 
pretcr to keep my mind entirely dispossessed of 
any such bias, and to examine the proposition as 
it stands affected by legal principle, the demands 
of justice, and the precedent practice of both 
branches of Congress. 

I know there is disloyalty in our country — 
a disloyalty bordering closely upon treason — but 
with that, at present, I have littlo to do. 1 
leave it with the candid historian to give the im- 
pressions of the present, or a future age, upon 
the conduct of those implicated with it; with the 
record which he nwst make up, I hope, in no 
wise, to be involved. 

It is a most singular fact, appearing throughout 
this discussion, that the opponents of the resolu- 
tion under consideration have been unable to har- 
monize upon any common ground of resistance. 
They have advanced no theory which they have 
not speedily and unceremoniously demolished. 
The positions assumed by the gentlemen from 
Delaware [Mr. Cullen] and Georgia, [Mr. Ste- 
phens,] although received by their friends with 
many marks of high favor and appreciation, 
were, upon the moment, successfully combated 
and overthrown by the honorable gentleman from 
Maryland, [Mr. Davis,] and he, at once, became 
the laureled champion of their cause. They have 



been utterly ruined by the raking fire from their 
own batteries. Even the piece which the gentle- 
man last alluded to, aimed with such unerring 
certainty at his friends, was found charged with 
such a powerful explosive, that, when he applied 
the match, its recoil fairly prostrated him. Yes, 
sir, those resisting in,vestigation are here now, 
and in full f iew of the country, unable to give us 
any ground upon which they are willing to stand 
without faltering. They are as 

" Puzzled as the Egypti.ins in their fog." 

They wade a dead and stagnant pool; and 
whenever they cast their net they draw forth but 
a putrid carcase. If there be doubt with respect 
to the law of the country by which the proposi- 
tion before us is to be tfcsted, then I prefer to take 
the advice given by the Macedonian philosopher 
to the orator, and appeal to the universal law of 
justice or equity. 

There is a question here which must be decided 
— one which cannot be evaded or overlooked. 
It is a question of startling and overpowering im- 
portance. And I regret to say that 1 believe there 
are gentlemen here who have taken ground against 
us, who, at no distant period, will repent the po- 
sition they have assumed. I will give my reasons 
for believing so in the course of my remarks. 

We have received the memorial of Governor 
Reeder on his own behalf, and on behalf of his 
people, asserting that popular sovereignty in Kan- 
sas has been overthrown: 

" That tlie law under which said pretended election [that 
of General Whitfield] washeld emanated from a Legislative 
Assembly which the people and qualified voters of said Ter- 
ritory protest and declare, throau'h your meniori.ilist, vvere 
not elected by them, but imposed upon them by the force 
of superior numbers of non-residents, who could pass no 
law that would be binding on them, and whose election and 
action should not be sanctioned or recognized by this House, 
because they arc utterly inconsistent with the idea of re- 
publican Government, and destructive of the plainest ajid 
most undeniable civil and political rights." 

We have received this memorial, and thereby 
admitted that there is a question to be settled, 
and that there are those represented here who 
have the right to demand an inquiry. Further, 






you have directed your committee to investigate 
it. Will you now afford fcliem the means to per- 
form the duty you have impos*! upon them; or 
is this to be regarded as an idle and unmeaning 
ceremony ? Are we to be met at every turn with 
mala fides 7 

Sir, it is a question of usurpation, and deeply 
concerns (jvery American citizen. It involves 
the right of self-government in every part of our 
country — in the States aawell as in the Territories. 
Can any Government of ours, independent or 
subordinate, be subverted by force or fiaud with- 
out the means being left us to correct the wrong? 
Such is the naked question. Do the foundations 
of republican Government rest, as we have here- 
tofore supposed, upon a rock, or upon shifting 
sand? As I look at it^no more important ques- 
tion can engage the attention of the present Con- 
gress, or the present age. I am instructed by the 
gentleman from Maryland [Mr. Davis] to regard 
Uie matter in this light; for I understand him to 
assume substajUially the position, that if the Gov- 
ernor of Kansas gave certificates of election to 
persons not legally elected to its Legislature, they 
are ipso facto s'- valid Legislature; or if the Presi- 
dent of the Luited States recognized them, at any 
period of time, as a Legislature,' there is no power 
in our Governmeirt capable of deciding they 
^ve^e not a legal body. I shall be slow to believe 
in this doctrine of the honorable gentleman. I 
will never admit that there is a power behind the 
State able to subvert it; or that the rights guar- 
entied to the people of a Territory, by its organic 
act, may be wickedly trampled down without 
remedy. I should have much less confidence in 
the virtue of self-government than I profess to 
have, if I could admit that the sanction of a ter- 
ritorial Executive, or that of the President of the 
United States, given to acts of outrage, sanctified 
them. The contest which we are called upon to 
decide, as it presents itself to us, is of right under 
the law with that of force above the law. 

I take this occasion to warn gentlemen of the 
South, lest they permit themselves to be led away 
by anything shor4. of the" merits of the present 
controversy. I warn them not to allow any other 
considerations than those of right and justice to 
enter into the determination of the issue. If I 
am not a " law-loving," I am, at least, a " law- 
abiding " man. I will stand by the law, and sup- 
port and defend it whenever and wherever I may 
see it in danger. I ask other gentlemen to be 
equally loyal. Sir, we of the North have stood 
by the compromises of 1850. We have been in- 
voked to do so; it was right, and we did so. I 
appeal to gentlemen now, not to set us an exam- 
ple of insubordination — teaching us to disregard 
the law. I tell you, that if you sow such seed in 
the North, it will fall in good gi-ound, and bring 
forth an hundred-fold. 

I was oj)posed to the Kansas-Nebraska bill; if 
I had been here I would have voted against it. I 
•was opposed to it, because it violated and de- 
stroyed a solemn and long-subsisting compact. I 
was opposed to it, because it was predicated upon 
a lie. I was opposed to it, because it violated the 
pledges of the Democratic party of the nation. 1 
was opposed to it because it falsified the plighted 
faith of the chief Executive to the people. But it is 
enouo;h for me to know that it has become a law; 
I will abide by it. I will take it, as a wife is 



taken, for better or for worse. I will vote against 
a restoration of the Missouri comjiromise when- 
ever such a proposition shall be IjriMight before 
this House; and I will telLyou why 1 will do so. 
I will do so for the reason that that compromise has 
been, filched — basely and ignominiously filched- 
away. It hasgoneinto the armsof the deliauohee. 
It has been deflowered, dishonored, and you can- 
!iot restore its sanctity or its purity. I will not 
again take it to my arms; I will not receive it back 
again, to be again polluted. I will look upon it 
rather as a thing once loved, but now lost forever. 
And, sir, I look for^l^^ard to the day — I may not 
live to see it; nay, sir, I will not live to see it; it 
is coming — when those who were instrumental 
in the* perpetration of that act of wickedness 
or folly will repent the deed in sackcloth and in 
ashes. I ask that this prediction may be remem- 
bered. 

Sir, the supporters of that bill have proclaimed 
to the nation that the Territories of the United 
States are to constitute " a fair field," and that 
there is to be " a free fight" there, between^the 
North and the South, to decide whi'thcr slavery 
or freedom shall rule them. If the energy, the 
enterprise, the active modes of life, the available 
capital, and the numbers of the North, shall not 
be able to compete successfull}^ Avith their oppo- 
sitcs in the South, and secure freedom to the Ter- 
ritories, then I will adrnit that there is a vitality 
and a power in slavery which we of. the North 
have never dreamed of. In my opinion, the Rei>- 
resentatives of the South in the Thirty -Third 
Congress " have sown the fire, and they will 
gather fire into their own garners." 

The principle of " squatter" or "popular sov- 
ereignty" underlies the act organizing the Terri- 
tory of Kansas. It constitutes, we have been 
taught to believe, its most prominent feature. It 
was the main argument for the enactment proper, 
as well as for the repeal of the compromise of 
1820. "The true intent and meaning" of that 
act is declared to be, " not to legislate sLavery into 
any Territory or State, nor to exclude it therefrom, 
but to leave the people thereof perfectly free to 
form and regulate their domestic institutions in 
their own way, subject only to the Constitution 
of the United States." 

It will scarcely be denied, with the current 
history of the legislation of 1854 so freshly in 
our minds, that Congress professed to give sov- 
ereignt)'-, or the right of self-government, to tho 
settlers in Kansas. It was announced to the 
people of the United States, that in emigrating to 
Kansas this right would follow or welcome them 
there. But I understana Jie gentleman from 
Maryland [Mr. Davis] to contend that we cannot 
inquire whether the people of Kansas have been 
despoiled of thi.s right or not. If I do not mis- 
conceive his views In this respect, he maintains 
this position, though the fact of usui-pation be 
clearly tnmspai-ent— though it be admitt(-d that 
there has been a sheer robbery of the dearest 
political immunities guarantied by Congress in 
the organic act. indeed to give his argument the 
weight he would wish it to have, he is forced to 
declare, that there is no power to investigate a 
case coming here circumstanced as the present 
case, though sovereignty has been completely 
crushed out. In plain words, he must contend 
that wc arc bound to take any man professing to 



. rnpreseiit the Ten-itory, wlKithor selected under 
the l4i\v, or in violation of ail law. 

Sir, 1 enter my solemn protest against a doc- 
trine so ruinous to, and subversive of, all rightful 
government. It is such a jilea as anarchy and 
wild disordei> would be likely to invoke in their 
defense. It has no place in my mind or my heart. 
I say, that, with the open grant of sovereignty 
contained in the organic act, and witli tho repeated 
proclamations of sovereignty made by those who 
invoked the enactment, the people of the Terri» 
tory ought to demtind it. I go further, and say, 
if there be one man there who will not insist ipon 
it to- the last of thought, of feeling, and of life, 
he is not a true son, but a bastard. He is un- 
worthy to tread American soil; he should flee 
to the throne of the despot, and there, kneeling 
to the dust, in the abjectness and turpitude of 
his nature, utter hosannas to the rigor of tho 
tyrant, the god of his idolatry, and swear eternal 
fealty on the galling chains destined to bind him. 
Such a being would be far more servile, and des- 
titute of manhood, than the negro slave himself. 
" If one 
Exist who woiilil not aim I'or liberty, 
lie lie, too. cursed living, and, when dead, 
Liit liini be biiriod downwards, vvitli liis lace 
Luuliing to hell, and o'er his coward grave 
The hare skulk in her fornl !" 
The earliest writers on elementary law declare 
, that it is useless to bestow a right without giving, 
at the same time, the means to enforce it. Does 
Congresspossess the power to restore sovereignty 
to the people of Kansas, if deprived of it in viola- 
tion of law ? I am not willing to so far emascu- 
late the supreme power in the land as to say they 
have not. It would be saying, in elfect, that the 
parent has no right to protect his child. I would 
rather say, that the power to bestow rights, with- 
out the poAverto secure them, isaweakness which 
does not exist in the theory of our Government. 
I contend that the power to maintain a right is 
comnacnsurate and coexistent with the power to 
bestow the right. 

Let us be honest; let us be trile to ourselves, 
as v/ell as to those whom we have induced, by 
promises, to occupy our hitherto unsettled do- 
main. Let us not give, these confiding pioneers 
an excuse to denounce us in the language spoken 
by Macbeth of the apparition: 

'rAnd be tfiese juggling Heads no more believ'd, 
That pilter with us in a double sense ; 
That kii.p 'he word of promise to our ear, 
And br.Mlc it to our hope." 

Sir, I am bound to assuine it as a fact, if there 
is a word of truth in tho Kansas act, or in its 
supporters, that there is sovereignty in Kansas; 
and if there be sovereignty there, that Congress 
is bound to protect and defend' it from violence, 
and to restore it when taken away. 

Mr. Speaker, let us see what tlie contestant and 
his constituents represent to us. They say there 
has been an invasion from the State of Missouri; 
that the invaders were armed and equipped; that 
they seized upon the polls, and held them with a 
strong hand; and in this way imposed a pretended 
Legislature upon them. Let it be remembered — 
let it go to the country — that this astounding 
statement ha.s not been denied; that investigation 
is not resisted because the allegationsaro not true; 
but because v/e cannot investigate • 

Mr. SMITH, of Virginia. What statement? 



Mr. HICKMAN. I cannot yield to an inter- 
ruption. 

Air. SMITH.. You m.nde.a suitoment. 

Mr. HICKMAN. I did make a stati>mcnt, 
and the gentleman, if he wants to say anything, 
can wait till I conclude. I say they virtually ad-, 
mit an invasion of the Territory. 

Mr. SMITH. The statement has boon utterly 
and repeatedly denied. [Cries of "Order !"] 

The SPEAKER. The gentleman from Vir- 
ginia is not in order. 

Mr. HICKMAN. I have not heard any gen- 
tleman upon this floor saj;-, in plain terms, that 
there has noi -been an invasion of Kansas. I 
understood the honorable gentleman from Ala- 
bama [Mr. Smith] to say that disorders were to 
be expected in new Territories and border States; 
and, because they are to.be expected, I presume 
wc are to be asked to put up with them- in what- 
ever shape they may come, or with whatever po- 
tency they may manifest themselves. Of course 
a denial of these assertions is not to be expected,' 
as no one- here can presume that he is acquainted 
with the facts. Bui, I observe, in a letter ad- 
dressed by a .citizen of Missouri to the Missouri 
Democrat, and published in that paper, that Mr. 
Atchison is charged with having used the follow- 
ing language, in a speech delivered by him at 
Platte City, on February 4, 1856: 

"Well, what next? WI13'. an election for members of 
the Legislature to organize the Territory must be held. 
What did I advise you to do then.' Why, meet them on 
their own ground, and beat them at their own gante again ; 
and, cold and inclement as the weather wa-;, I went over 
with a company of men. My object in going was not to, 
vote. I had no right to vot6, unless I had disfranchised 
myself in 31issouri. I was not within two miles of a voting 
place. My object in going was nol to vote, but to si'ttle a 
difficult^.^twceii two of our cai;didates ; and the Aboli- 
tionists of the North said, ami puldisludit nhroad, that ,itckia 
son tras there with bowie knife and revolrer, mid by G — a* 
'twas true. I never did go into that Territory — Incvcr intend 
to go into that Territory, u'Uh,r>ut hein^ }>rej:arciJor allsach 
kind of cattle. Well, v.'o bent them, and Governor Reader 
gave certirtcates to a niajoritj' of all the members of both 
houses." 

This, as I read it, is something akin to an ad- 
mission, on the part of Mr. Atchison, that there' 
was a species of " armed inferveiition*' between; 
the people and their rig.ht to elect a Legislature, ji 

I will ndt venture to assert that these allegetf 
outrages have been perpetrated; but, silting hei^e,; 
I have a right to know whether tRey be true or' 
not. I should consider myself faithless to my 
office, if I did not seek to ascertain the truth. 
Unwilling as I am to yield a ready credence to 
such high charges, I am still sensible there are 
tho;5e in this country who, if they could distill a 
poison as potent as that of the fabled Upas tree, 
would scatter desolation and death o\er evpry 
terrestrial paradise. Especially would they be, 
willing to' cast blight and barrenness over this' 
blest heritage of freedom. Failing to ingraft 
some favorite theory upon our institutions, they 
would crush the'Union itself, and, with it, the 
last hope of downtrod'dcn man. I fear not their- 
maciiinations, for I cannot but believe that the 
un.slecping eye of the nation's God' is upon them, 
and that the Omnipoient word must .soon be ut- 
tered, "Thus far shalt tliou go, and no further." 
I have an abiding confidence that our country is 
still to move onward in her path of greatness and 
of glory; and that future inillions will exultingly 
worship in the temple of liberty, when nothing 



shall remain of the actual or constructive traitor 
but a deserted grave, and that retribution which 
must await an enemy of his race. 

The minority of the committee, in tljeir report, 
and the sitting Delegate, in the paper he has iifcd, 
resist the right of this House to investigate the 
statements made by th* people of Kansas upon 
three grounds: 

1. That the seat of the sitthr^ Delegate can only 
he contested by one who, if successful in removing 
biin, u'oxdd be entitled to the seat. 

2. That no inquiry can be made into the legality 
qf the Kansas Legislature. 

3. Jf that inquiry could be had, then the acts of 
Governor Reeder frove its legaHtit. 

I think I shall be able, Mr. Speaker, to satisfy 
all candid and unprejudiced minds that there is 
no soundness whatever in either of these points 
thus made. I will examine them with as much 
brevity as possible. 

The first position assumed is, as I conceive, 
entirely unsupported by legal analogies, the dic- 
tates of reason, or the practice of this House. A 
contestant is not to be regarded .in the light of a 
plaintiff in court, for the reason that the determ- 
ination of the question he raises concerns the 
House itself as much, if not more, than it does 
the contestant. The case is more akin to thai of 
acourtinquiringinto its own constitution. When- 
ever a doubt is raised as to the title of one of its 
officers, or a challenge is made to the jurors , 
returned to it, the court must stop to inquire into 
the truth of the alleged facts; it must determine 
whether its own parts are legally constituted. 
This House is making up its own constituent 
parts, and it will not admit a stranger. It is de- 
ciding who are its members, and what title can 
be made out by those claiming scats. S'o man 
ievoid of title can sit here. This House, at least, 
cannot be made up by usurpation. 

lam able to speak from the record, and to assert, 
in the most positive terms, that this House, in at 
least seven different instances, has undertaken to 
do that whiclv<we are now told it cannot do. In 
tlie cases to which I make reference, the House, 
of its own motion, without a contestant, instituted 
inquiry into the titles of those who claimed seats. 
They are as follows: David Baird, of Pennsyl- 
vania; N. Hunter, Delegate from Mississippi; J. 
P. Van Ness, of New York; Paul Fearing, dele- 
gate frona the Northwest Territory; George Mum- 
ford , of North Carolina; John Forsyth , of Georgia; 
and John Lanman, of Connecticut. These cases 
furnish, I think, a conclusive answer to the as- 
sumption, that there must be a contestant showing 
title before an investigation can be had. But I 
will hot rest my answer here, as I think it may 
be rendered still more conclusive. In the case 
now before the House there is a contest, not 
made by Governor lleeder alone, but by the 
people of Kansas. It will scarcely be contended 
that inhabitants of that Territory are not entitled 
to be represented here. The organic act, I trust, 
has not become so worthless as such a denial 
would make it. They say General Whitfie'ld is 
not their Delegate, and they demand a decision 
whether he be so or not. I will now give to the 
opjiosition eight cases wherein this House, upon 
the request of citizens alone, has investigated 
claims to seats. They are as follows: John Stan- 
wick, of Pennsylvania; Joseph B. Varnum, of 



Massachusetts; John Hoge, of Pennsylvania; M. 
Leib, of Pennsylvania; P. B. Key, of Maryland; 
John Bailey, of Massachusetts; John Sergeant, 
of Pennsylvania; and Albert Gallatin, of Pennsyl- 
vania. The House, indeed, could not have done 
differently. They could not avoid that most 
material inquiry, whether those claiming to be 
members of their body were so or not ? If ever a 
legal heresy emanated from a legal mind, the point 
I have examined is one, and I leave it. 
, The second ground assumed by our opponents 
is an important one, and will require of me a 
more careful consideration. It denies to us the 
power to inquire into the legality of the Territo- 
rial Legislature — in other words, it assumes that 
we must regard every body of men as legislative, 
which professes to be so. The minority of the 
committee contend that an inquiry into the legal- 
ity of a Legislature can only be made Ijy the judi- 
ciary. As a general pi^position this is true; but 
when applied to such a case as the present it ia 
untrue, and the reason is manifest. A court can 
only determine such aquestion in acase properly 
before it; aiid a court has rto concern with con- 
tests for seats in Congress. On the contrary, the 
right to determine such questions is given by the 
Constitution to a very different tribunal. The 
language of the 5th section of the 1st article is, 
" Each House shall be the judge of the elections, 
returns, and qualifications of its own members." 
The legitimate sphere of action of the different 
departments of Government are clearly defined, 
and we must not confound them. 

But, sir, the gentleman from Maryland [Mr. 
Davis] has taken a more bold and dangerous 
ground. He has left all others far below him in 
the wild daring of his flight. I understand him 
to conicuA; first, that, as by the Kansas act " the 
persons having the highest number of legal votes 
shall be declared by the Governor to be duly 
elected," the decision of that ofRcer is final— that 
his certificate fixes the Legislature — even admit- 
ting that they were not legally elected. I regard 
any such notioii as this perfectly heterodox. It 
cannot be, that the certificate is of greater value 
than the legal votes, and overrides them. I would 
rather contend that the legal votes were the foun- 
dation of the title to the office, and the certificate 
but ancillary. To conclude that the certificate 
constitutes the foundation of title, would be^ to 
assume that the Governor could make a Legis- 
lature without votes. But Governor P^eeder as- 
serts that he gave the certificates in ignorance of 
the facts, and that the people were intimidated 
from making comj^laint. If such was the case, 
then, I reply, fraud or duress vitiates any and 
every act. 

Tlic second postulate of the gentleman from 
Maryland is this: that, whenever there is a con- 
test in a State or Territory as to the residence of 
sovereignty, the President of the United States is 
tojflecide the question. Simplified, his proposi- 
tion stands thus: that is tlie supreme power in a 
State or Territory which the Presidoit recognizes 
as such. The President is bound by the Consti- 
tution to " see that the laws are fiiithfully exe- 
cuted;" and to cause laws to be executed it may 
be necessary for him to decide betv/een rival Le- 
gislatures wifich is the true one. This I do not 
deny. I do deny, however, that he can decide 
that question for Congress, or for cither House of 



Congress. He cannot make that provision of the 
fundamental law, to which 1 have just referred, 
paramount to the other yirovision of the same law, 
that " each House shall be the judge of the elec- 
tions, &c.,ofits own members." IJoth provisions 
must exist in full and equal force. The sound 
view, I take it, is this: that the President may- 
decide for himself, wherever and whenever it may 
become necessary for him to take action. So also 
may Congress, or either House of Congress, in 
like manner, decide for themselves whenever it 
may become necessary for them to take action 
upon any matter which makes that inquiry neces- 
sary. What virtue would there be in the con- 
stitutional grant of power to this House to judge 
af the elections of its members, if the President 
could collaterally and finally decide that an illegal 
Legislature was a legal body, and, consequently, 
tJiat its laws were vahd, and all elections held in 
pursuance thereof binding ? This would be con- 
centrating power in the hands of the Executive to 
an alarming degree. It would be giving him the 
power to subvert, by an easy process, not only 
every State government, but the General Govern- 
ment itself. 

Botli positions I have been examining put a 
Legislature de facto upon the same platform with 
a Legislature de jure. They make proclamation 
of the monstrous doctrine that you may originate 
a bogus Legislature in a State, and if you can keep 
it in existence long enough to pass an act pro- 
viding for the election of Senators and Repre- 
sentatives in Congress, by getting an executive 
sanction to the usurpation, the Senators must be 
admitj^ed in the other end of your Capitol, and the 
Representatives in this. These positions, 1 repeat, 
being subversive of all rightful government and 
ell order, I must be pardoned for disagreeing with 
the logic of the honorable gentleman. 

Mr. Speaker, I am doubly supported in the 
views I have just expressed. 

In 1833, a question of contested election arose 
In the Senate of the United States, between Pot- 
ter and Robbing, from Rhode Island, both claim- 
ing seats. The charter limited the term of service 
of the Legislature to one year, and the body 
"elected in May, 1831, " foi- the ensuing year," in 
Janua.ry, 1832, passed an act by which they ex- 
tended their term of office for a longer term, in 
violation, as was alleged, of the charter; and still 
lioldin^^ on to their functions in January, 1833, 
they elected Mr. Robbins to the Senate for six 
years from 4th March, 1833. 

Before Mr. Robbins took his seat, another 
Legislature was elected, who declared the act of 
January, 1832, and the election of M^-. Robbins, 
void, on the ground that the body who elected him 
was not at the time a valid Legislature, and had 
no right to act; and th.ereupon elected Mr. Potter. 

Both parties claimed the seat, and majority and 
minority reports were made, in both of which it 
Was admitted in the clearest manner that thi; Le- 
gislature who had elected Mr. Robbins was an 
acting, de facto Legislature, in full possession of 
all the legislative powers — unmolested in their en- 
joyment — passing laws, and the only Legislature 
in the State. And notwithstanding this, the in- 
quiry was fully made and argued in both reporis, 
whether it was or was not a valid Legislature; 
and upon this point the case was made to turn. 
The i-eport of the majority says: 



"Was the body by which he was chossen a Senator the 
Legislature of lUiode It^Iaiul, or was it merely an assemblage 
ol' citizens witliout authority to pass laws?" fitc. 

It is also stated " that this General Assembly 
continued to perform all their fitnctions until the 
end of the session of January, 1833." And yet 
they add: 

" It remains to be inquired, was this body so nssembled 
the Legislature of Rhode Island ? The law by whieh they 
continued to exercise the powers of legislation is said to be 
repiignanl to the charter, and therefore void. If this be a 
sound nl)joction, it at once annuls every part of tlioir pro- 
ceeiliML's. and. as a necessary consequence, tliat of choosing 
a Senator in Congress." 

The minority report, drawn by Hon. Silas 
Wright, presents the same aspects of the quee- 
tion, viz: 1. The admission that the body was 
the sole acting Legislature of the State, engaged 
in the unmolested discharge of all their furfctions. 
2. An inquiry into their title to the office; and 
whether those functions were exercised rightfully 
or wrongfully. Mr. Wright further says: 

"The validity of the election of Mr. Robbins is contested 
on the ground that the persons acting as the Governor, 
Lieutenant Governor, and Senators of the State, and, as 
such, voting for a Senator at the time Mr. Rolihins's elec- 
tion was made, were elected on the first Wednesday in 
May, 1831, for the ensuing year, and for no longer terra — 
that the Legislature of the State had not tlie power to con- 
tinue their official terms beyond tlie Uniits fixed in the char 
ter, &c. 

" On the other side, It is contended that, by the charter 
itself, the offices, powers, and duties of those otficers do 
not cease and determine unlil others are elected in their 
places ; that the Legislature of Rhode Island have passed 
many laws in contravention of the charter; that the prac- 
tice of the government, as shown by its legislation, proves, 
that the charter' has not been held to be the fundamental 
law of the State, e.\cept as to certain specific grants ; and 
that the act of January, 1832, does not conflict with those 
grants, and is therefore valid in all its parts. " 

Thus the question was fully, deliberately, and 
solemnly raised, examined and passed upon in 
the Senate of the United States, whether an act- 
ing Legislature, in the full exercise of all the 
proper functions, and recognized by the coordi- 
nate branches had acquired their powers right- 
fully or wrongfully — whether they were in office 
by rightful title or by usurpation. 

Again: I hold in my hand the decision of the 
Supreme Court of the United States, delivered 
by Chief Justice Taney in the case of Luther vs. 
Borden, cl al., in 7 Howard, pp. 42, 45; and in 
that decision I find the following doctrine laid 
down: 

" Under this article (that which guaranties to the States 
a republican form of government) of tlie Constitutioi;, it 
rests with Congressto decide what sovenimentistheestat)- 
lislied one in a State ; for, as the United 'States guaranty 
to each Slate a republican government. Congress must ne- 
cessarily decide whatgoveriniieutis established in the State, 
before it can determine wlicther it is republican or not; 
and when the Senators and Representatives of a State arH 
admitted into the councils of the Union, the authority of. 
the govoriiiuent under which they are appointed, as well as 
its republican character, is recognized by the proper con- 
stitutional authority ; and its decision is binding on every 
other Department of the G»iverninent, and could not be 
questioned in a judicial tribunal. It is true that the contest 
in this case did not last long enough to bring tlie matter to 
tlii-; i<sue; and as no Senators or Representatives were 
elected under the authority of the government of which 
Mr. Dorr was the head. Congress was not called upon m 
decide the controversy. Yet tiie right to decide is placed 
tlicre and not in the courts." 

<■■ Undoubtedly, if the President, in exercising this power, 
shall fall into error, or invatle the rights of the people of the 
State, it would be in the power of. Congress to apjily the 
proper remedy. Hut the courts must adiainiiler tlic law as 
tliey find it." 



6 



I apprehend there will be little difficulty where 
. there is no pnjudicc, with these cases before us, 
in comins; to the conclusion that this House. is 
without FLStrictioii in ihe exercise of its constitu- 
tional right of investigating, the election, even of 
Representatives from a sovereign Slate. If we 
can test the validity of the Legislature of a State — 
a sovereignty — where we have no power but that 
which is. expressly delegated, dare yon deny the 
right to inquire into the title of the Legislature of 
a mere dependency? Let it not be forgotten that 
the Territory of Kansas is "//ie properly" of the 
United States, to idl intents and purposes, as fully 
as my house is my property. Congress has the 
power " to dispose" of it, and to ^^ make all needful 
rules and regulalions respecting" it. The language 
of the Constitution is: "Tlie Congress shall have 
power to dispose of and make all needful rules 
and regulations respecting the territory or o'ther 
propel ty belonging to the United States-." We 
may change, modify, or repeal the organic act 
itself. Our rights over the territory of the United 
States are most absolute, even to that of an um-e- 
stricted disposal of it. With such unlimited con- 
trol of our territory, would it not be strange, 
indeed, if we could not determine whether a Del- 
egate, professing to come from a Territory, is 
sent here by the people of the Territory, or by an 
invading army? Congress may destroy the legis- 
lative body itself, and consequently their creations; 
for it will not do to assert that the creature is 
greater than the creator. 

" 'Tis mad idolatry 
To make the service greater than the god." 

Let not what I have said of the powers of Con- 
gress be considered inapplicable to the argument, 
for it is to be remembered that this House is as 
omnipotent within its prescribed circle of action 
as Congress is within its defined limits. Icon- 
clude this part of my argument wit?l the remark 
that this House may judge of the election of its 
members — not in one case — not in a particular { 
class orcasos — ^but it) all cases which can possibly i 
arise; not with limit, but without any restriction j 
whatever. In the case of a Delegate it may push } 
its inquiries back to the moment the organic act I 
was signed. Any view which militates against J 
this, wars against the Coiijjtilution, the human 
understanding, and unwavering precedent. Such I 
a vie\y is destructive of all sovereignty, both in i 
State and Territory, and is sickly as consumption 
— weak as fancy — impalpable as air — imponder- 
able as light. 

Mr. Speaker, I shall ' bestow but little time 
upon the consideration of the third and last ob- 
jection raised to the proposed investigation. It 
IS urged, with seeming gravity at least, that Gov- 
ernor Rceder, by appointing the judges of elec- 
tion, giving certificates to seventeen out of twenty- 
«4X of the Repri.'sentatives, and to ten out of thir- 
toei) of the Council, and delivering messages to 
the body convened at Pawnee, made those thus 
convened there a legal body. I ri'ply that no act 
of Governor Rceder could legalize an illegality. 
The people of the Territory had }io control over 
him or his acts, and he could do nothing which 
would rob them of their rights. If, however. 
Governor Reeder attempted to legalize an illegal 
body, and to drown the self-government conferred 
upon his people by the act organizing the Terri- 
■iovy, there is the greater reason why the people 



should be allowed to discover that fact, and why 
we should listen to them. The idea that under 
a popular Government an officer, whom the peo- 
ple can neither create nor control, can d( stroy 
without redress a guarantied sovereignty, is mon- 
strous in the extreme. It would drive us to this 
paradoxical conclusion: fliat Congress made an 
act, which made an officer, who did a thing, and 
that the thing must bo ever-existent thereafter, 
because greater than Congress. 

Upon the material arguments embraced in the 
report of the minority, as well as thev/ritten an- 
j swer of General Whitfield, I have said all that I 
have the strength to say. A single allusion further 
to the latter paper, and I leave them. I allude to 
the intimation, therein made, of the unfitness of [ 
Governor Reeder for the pcsition of Governor of 
the Territory. I am sori-y that the sitting Dele- 
gate should have considered it necessary to his 
case to give such an exhibition of his passion or 
his spleen to this House. " ,,j 

I am neither the defender nor apologist of Gov- 
ernor Reeder; he requires neither. I am aware 
that the President of the United States has made 
an .effort — and that, too, of no ordinary charac- 
ter — to stigmatize his appointee with dishonesty, 
and to sink him as a politician and a man; but I 
am also aware that no popular verdict has as yet 
been rendered in accordance with the high excc- 
cutive accusation. That verdict, thus invoked, 
in my opinion will never be rendered. In point 
of social position, moral worth, gentlemanlyhear- 
ing, legal learning, and general mtelligence, hois, 
not one whit below that of the President himself. 
Of that present and e])hemeral importance which 
power and place confer he cannot boast, but in 
tl»is respect alone is his .standing inferior to that', 
of his accuser. This is not the first instance, 
however, in our history where a hasty and ill- 
advised stroke from the hand of power has failed 
to destroy the object at which it was aimed. The 
Senate of the United States refused to ratify the 
nomination of a Van Buren as Minister to tha 
Court of St. James, butanindignantpeople placed 
the seal of their reprobation upon the official act,' 
and made him their chief. An arbitrary court, 
imposed a vindictive fine upon the hero of New 
Orleans: the popuk^r voice named him the head of 
the greatest nation of the globe, and the Ameri- 
can Congress restored the right of which he had 
been deprived.. 

The character of Governor Reeder is unafiTected 
in his native State; whilst the recent action of tho 
Democracy of that Slate has exhibited an unwill- 
ingn( ss on their part to be further governed by 
his denouncer, although solicited to be so. If 
he is unfit for Govirnor of Kansas, then may it 
truly be said that Pennsylvania has no son withia 
her borders who may be esteemed worthy. 

Mr. Speaker, seeing that we have a cl. ar right 
to investigate the facts of the present case, there 
is but a single question remaining. Shall we rely 
upon books, papers, rumors — which are com- 
pletely pantamorjihic — for our facts, or shall we 
conduct our investigations with some respect to 
decency and propriety? This is no time, and 
this no case, inviting us " to change true rubs foB 
odd inventions." If we are constrained to con- 
duct them by the former means, we will be 
launched into an inquiry as mysterious and im- 
penetrable as tho Iron Mask. Let us not so far 



record a slander upon our judgments as to decide 
•we will wander in a labyrinth of conjectures in 
search of facts. The investigation must be con- 
ducted by the production of legal evidence: the 
importance of the question at issue demands it, 
the state of the public mind demands it, and the 
eanctity of our frame of government demands it. 

Sir, I am not wedded to the resolution reported 
by the committee. I have no feeliiig of pride 
which can bind me to it. I am willing to give 
my support to any proposition which will efiect- 
cate the object I have in view. I have little faith 
tliat a commission can be executed within the 
Territory of Kansas. There are serious disor- 
ders there, even at this moment, and an^ncreas- 
ing tendency to a state of actual \Var. The recent 
proclamation of the President of the United 
States warns us of the danger of a fresh invasion 
of the Territory. An attempt to execute a com- 
mission there would necessarily bring the warring 
elements in contact, and of itself produce disas- 
ters. The proposition of the gentleman from 
Indiana [Mr. Dunn] will allow the committee, 
which it contemplates shall be raised, to sit outside 
the Territory. Am I mistaken in this ? 

Mr. DUNN. The object of my proposition is 
to clothe the committee with power to go where 
it would be convenientfor the witnesses to attend. 

Mr. HICKMAN. So I understand it; and that 



the committee will not be bound to sit within the 
Territory, if found inconvenient, from any cause, 
to do so. I will tlu'ii vote for it: 1 will not risk 
a full investigation by standing on a sharp ]K)int. 
I have not underestimated,^ Mr. Speaki:r, the 
force of the opposition on this floor to any and 
every measure having for its object the production 
of facts. I know that a single vote may be of the 
utmost importance, and I call upon those favoring 
investigation not to sacrifice everything to a tri- 
fling objection. Twenty-three centuries and a 
half ago, Callimachus, standing on a mount over- 
looking the plain of Marathon, by his single vote 
decided the progress of human civilizat'ion by 
agreeing to fight the Persians under Darius. Sir, 
in my opinion, a single vote cast here to-day may 
produce th.e most stupendous consequences. It 
may decide whether this House of Congress is a 
' fair and impartial one, or whether it is reckless 
and desperate. It may decide whether we will, 
by the practice of equity, purchase a glorious 
futui-e, or, by denying it, blacken our coming his- 
tory. The massy pillars of this Republic, though 
strong as human ingenuity could construct them, 
may nevertheless be shaken — j'-ea, they may be 
crushed: Let us ever be mindful that it is alike 
our highest duty and our greatest interest to sup- 
port them, as by their overthrow we would be 
compelled to suffer a common ruin. 



Printed at the Office of tlie Congressional Globe. 



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